Why This Discrimination against Christians - Is Section 118 of the Indian Succession Act Unconstitutional

(By Tonny George Kannanlhanam, Advocate, Ernakulam)

The problems related to Indian Succession Act has become a matter of repeated debate and discussion. However, no constructive step seems to have been taken to remedy this situation. The following is a resume of the legal and related problems. This is presented which the hope that those concerned will take effective steps to improve the situation.

Section 118 of the Indian Succession Act 1925 reads as follows:

"Bequest to religious or charitable uses- No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by will executed not less than twelve months before his death and deposited within six months from its execution in some place provided by law for die safe custody of the Wills of living persons".

When the British settled down to govern India they found that there was no ascertainable law in the matter of succession for communities other than Hindus and Muslims. It was to fill this gap that the Indian Succession Act of 1865 was enacted.

The Indian Succession Act 1865 was repealed and the Indian Succession Act 1925 was enacted consolidating various other enactments in the matter of intestate (testate) and testamentary succession.

The Indian Succession Act 1925 (Act No. 39 of 1925) came into force on 30th September 1925. The Indian Succession Act 1925 was an attempt of the Legislature to embody into one comprehensive Act the law of testamentary and intestate succession applicable to all classes in British India instead of having different Acts for different communities.

The above Act consolidated the Indian Law of Succession. There were numerous statutes relating to intestate and testamentary succession and this Act repeals those statutes and re-enacts in the form of one Act all of them with slight alterations. The Act is therefore, a purely consolidating Act and no fundamental changes are made in this Act to the previous statutes governing the field.

The enactments consolidated in this Act are:-

1.      The Succession (Properly Protection Act) Act 1841, Act XIX of 1841.

2.      The Indian Succession Act of 1865, Act X of 1865.

3.      The Parsi Intestate Succession Act 1865, Act XXI of 1865.

4.      The Hindu Wills Act 1870, Act XXI of 1870.

5.      The Married Women Property Act, 1874, Act III of 1874.

6.      The Probate and Administration Act 1881, Act V of 1881.

7.      The District Delegates Act, 1881, Act VI of 1881.

8.      The Probate and Administration Act, 1889, Act VI of 1889.

9.      Succession Certificate Act, 1889, Act VII of 1889.

10.     The Probate and Administration Act, 1890, Act 11 of 1890.

11.     The Native Christian Administration of Estates Act, 1901, Act VII of 1901.

12.     The Probate and Administration Act, 1903, Act VII of 1903.

The provisions of Section 118 of the Indian Succession Act, 1925 has been borrowed from the statute of Mortmain and though it has been held that this statute has no application in India (Mayor of Lyons v. East India Co., I.M.I.A. 175) the principles laid down by the Statute have been enacted in this section. In England before the passing of the statute of Mortmain (9 Geo. IIC. 36) the policy was to favour gifts for charitable and religious uses. But the proneness of the people to make ill considered dying bequests under religious influence threatened to develop into a public danger and the above statute was accordingly passed in 1936 to prevent persons from making death bed bequests.

It can be seen from the above that the principle laid down by the statute of Mortmain has been enacted in S. 118 of the Indian Succession Act 1925.

It can also be seen that the only purpose of the statute of Mortmain was to prevent persons from making ill considered death bed bequests and that too under religious influence.

If the principles laid down by the statute of Mortmain has been enacted in Section 118 of the Indian Succession Act, 1925 and if the only purpose of the statute of Mortmain was to prevent persons from making ill considered death bed bequests and that too under religious influence then S.118 cannot be made applicable to those death bed bequests which are not death bed bequests and which are not at all ill considered and which are not at all made under religious influence.

By the statute of Mortmain (9 Geo. II, C. 36) severe restrictions were placed on alienation of lands to charitable purposes. This statute was repealed and replaced by the Mortmain and Charitable Uses Act 1888 (5 land52 Vict. C.42) which is still in force in England. Under this Act every assurance of immovable property - for any charitable uses is void unless executed at least before two witnesses, twelve months at least before the donor's death and enrolled in Chancery within six months before the death.

The object of Section 118 is to prohibit death bed bequests to religious or charitable uses by persons having near relations except under the above conditions. Such death bed bequests cannot be made by persons having any of the following relations: (1) Father. (2) Mother, (3) Son, (4) daughter, (5) Grandfather, (6) Grandson, (7) Grandmother (8) Grand daughter. (9) Brother, (10) Sister, (11) Nephew, (12) Niece.

On page 377 of Sanjiva Row's 1910 edition of Indian Succession Act of 1865 it is stated that nephew, niece or any nearer relative denote only legitimate relationships.

Part VI of the Indian Succession Act, 1925 deals with Testamentary succession. Pan VI includes Section 57 to Section 191.

Section 58 of the Indian Succession Act deals with the general application of Part VI. The above section reads as follows:

S.58. General application of Part -(1) The provisions of this Part shall not apply to testmentary succession to the property of any Mohammedan nor save as provided by Section 57 to a testamentary to the property of any Hindu. Buddhists, Sikh or Jains, nor shall they apply to any will made before die 1st day of January 1856.

(2) Save as provided in sub-s.(i) or by any other law for the time being in force the provisions or this part shall constitute die law of India applicable to all cases of testamentary succession.

Section 118 if enforced goes against the intention of the testator. If that is so the very exercise of writing the will is meaningless. Section 118 thus prevents die purpose of writing die will of die testator from being carried out.

Since Section 118 is not applicable to Hindus, Muslims, etc. It is a discrimination against Christians and so is discriminatory and violative of Art.14 of the Constitution of India. For Hindus, Muslims, etc. there is no such restriction for charitable bequests.

Since Section 118 is inconsistent with Art.14 and 15(1) of the Constitution of India it is also violative of Art.13(1) of the Constitution of India.

Section 118 in effect amounts to discrimination only on the ground of religion.

Section 118 violatives Art.25(1) of the Constitution of India in so far as only because one is a Christian he has to face the consequences of Section 118.

As per Section 118 bequests to religious or charitable uses will get legal validity only if die will is executed not less than twelve months before die testator's death.

The above period of not less than twelve months prescribed by Section 118 after the execution of the will and before the death of the testator is unreasonable, arbitrary and discriminatory without application of mind, unfair, and clearly violative of Art.14 of the Constitution of India.

Human beings have no control at all over their life span. Even very healthy and active persons die any moment due to various reasons unpredictable. So prescribing a period of one year after the execution of the will and before the death of the testator is unreasonable and arbitrary.

Section 118 further says that the will so executed has to be deposited within 6 months from its execution in some place provided by law for the safe custody of the wills of living persons.

The above time limit of within 6 months is also unreasonable and violative of Art.14 of the Constitution.

The above condition to deposit in some place provided by law for safe custody to gel: legal validity for bequests to charity is also discriminatory, unreasonable and violative of Art.14 of the Constitution of India.

Section 118 applies to all the bequests to charities whether such bequest is a direct bequest or is a contingent bequest or is subject to a life interest.

Section 118 applies to all properties both immovable and movable.

As per Section 118 the following bequests are void if the testator is having a nephew and he makes a bequest by a will not executed and deposited as required by Section 118.

1.      For the relief of poor people.

2.      For the maintenance of sick soldiers.

3.      For the erection or support of a hospital

4.      For the education and preferment of orphans.

5.      For the support of scholars.

6.      For the erection or support of a school.

7.      For the building and repairs of a bridge

8.      For the making of roads.

9.      For the erection or support of a church.

10.     For the repairs of a church.

11.     For the benefits of ministers of religion.

12.     For the formation or support of a public garden.

The Succession Act gives no definition of "charity".

Under Section 3 of the Indian Succession Act the State Government has the power to exempt anyone from Section 118. The relevant portions of the above section is as given below.

"Section 3: Power of provincial Government to exempt any race, sect, or tribe in the province from operation of Act. (1) The (State Government) may by notification in the) (official gazette) either retrospectively from the 16th day of March 1865 or prospectively exempt from the operation of any of the following provisions of this Act, namely Ss.5 to 49,58 to 191, 212, 21 3 and 215 to 369 the members of any race, sect or tribe in the State or of any part of such race, sect or tribe to whom the (State Government) considers it impossible or inexpedient to apply such provisions or any of diem mentioned in the order.

xxx                               xxxx                             xxx

(3) Persons exempted under this section or exempted from die operation of any of the provisions of die Indian Succession Act, 1905 under S.332 of that Act are in this Act referred to as "exempted persons".

The procedure prescribed for getting legal validity for charitable bequests in Section 118 is unfair and unconstitutional.

The Supreme Court has said in 1994 (3) SCC 569 (Kartar Singh v. State of Punjab/ as follows:

"The procedure established by law must be in consonance with fundamental principles of fair justice. If procedure offends die fundamental fairness or established ethos or traditions or shocks die conscience of die court it is unconsciousness, unfair, unjust and unreasonable die same would be unconstitutional, Procedural law as well as substantive law must pass die test of Art Hand must be just and fair."

The Supreme Court has repeatedly held that in deciding whether there is a constitutional violation the intention of the law makers is immaterial and what matters is the effect of the law on the fundamental rights. If the law affects the fundamental rights adversely then irrespective of the intention, the law, is based and has to be struck down.

It was held in 1973 SC 106 (120) that however laudable or otherwise justifiable the object or purpose for differentiation it is not the object or purpose or the form but it is die effect, die impact, the results of the law that would determine the question of infringement of fundamental rights.

It was again held 1978 SC 597 (para.13 page 199) that the test for determining whether a statute infringes a fundamental right is the direct and inevitable effect of the statute on a particular fundamental right. The object of the law or the executive action is irrelevant.

Many have set apart a portion of their assets for charity in trie will. But so long as the above section is not struck down as unconstitutional or till the Kerala Government exempts Christians from this provision in many cases the amount set apart for charity will not go for charity.

Unconstitutional Walk-Out

(By T.P. Kelu Nambiar, B.A.M.L.)

We find news-papers reporting every day or every third day that the Opposition staged a walk-out from the Assembly for one reason or the other. This walk-out is certainly on exhortation by the Leader of the Opposition. Here, the Leader forgets the Constitutional oaths taken by him and his duties under the Constitution. On a survey of the matter, I am inclined to take the view that such walk-outs are unconstitutional. I should think that this topic is of tremendous validity in these days. Therefore I have decided to take it out of my casket of silence.

A member of the Legislative Assembly represents a particular territorial constituency as provided for in Article 170 of the Constitution of India. Let it be noted that a Member of the Legislative Assembly is not a representative of only the electors whose votes enabled him to succeed; once elected, he becomes the representative of the particular territorial constituency as such. Like that, when elections are held to all the territorial constituencies of the State, the members elected collectively represent the entire State.

When a person offers himself as a candidate for election to the Legislature of the State, he is bound to take a Constitutional oath/affirmation as provided for in the Third Schedule to the Constitution of India. The oath/affirmation is as follows:

"I,...............having been nominated as a candidate to fill a seat in the Legislative Assembly, do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to die Constitution of India as by law established and that I will uphold the sovereignty and integrity of India."

Before taking seat in the Legislative Assembly on his election, the elected Member has to take a Constitutional oath/affirmation. This is also provided for in the Third Schedule. The oath/affirmation is as follows:

"I,.........having been elected a member of the Legislative Assembly do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter." (underlining supplied).

The Constitution includes within the functions of the Legislature, the function of expressing the opinion of the people, the function of informing the people of what it does, the function of properly teaching the public as well as the functions of legislation and finance. Bagehot has spoken of the expressive function, the teaching function and the informing function of the House of Commons. Same are the functions of a Legislature of a State. The Legislature "is a sounding-board" of the State's grievances and opinions; legislators are expected to create without destroying; and, according to John Stuart Mill, who spoke of the functions of the House of Commons, it is an arena in which not only the general opinion of the nation, but that of every section of it can produce itself in full light and challenge discussion. The Members of the Legislature who do not hold ministerial office need the political will to do more than simply sit in or quit from the Legislature. The proper office of a representative Assembly, in the words of Mill, is to watch and control the Government; to compel a full exposition and justification of all of them which anyone considers questionable; to throw the light of publicity on its acts; to censure them if found condemnable; and, if the men who compose the Government abuse their trust or fulfill it in a manner which conflicts with the deliberate sense of die nation, to expel them from office. But, not to run away from the Legislature off and on. When the Opposition walks-out of the Assembly the political party/parties running the Government will not have to face any opposition; and several business would be taken up and completed in the absence of the Opposition, without any discussion and difficulty. That is facilitated by the intermittent out-door peregrinations of the Opposition. Nothing is gained by such exit; but many things are lost. No profit it derived; but huge loss is incurred. When the Legislative Assembly is in session, the duty of a Legislator is inside the Assembly, not out-side. True to his oath, he has to faithfully discharge the duty upon which he had entered, as a Member of the Legislative Assembly. He cannot run away from that duty, whatever be the subject of consideration, - be it pivotal or peripheral, major or marginal, profound or profane. Such act of running away is verily unconstitutional: and breach of the Constitutional oath. Running away from duty cannot be equated to registering a protest. As representatives of territorial constituencies, the Members of the Legislative Assembly owe duty to the people of the respective territories by representing them in the Assembly. This is a Constitutional duty.

Have the members of the Opposition ever considered the question as to whether their boycott of the Assembly is liked or disliked by the people who have facilitated their entry to the Assembly.

The above are some of my thoughts on an important constitutional aspect. In fact, this topic is fit to be made one for public discussion, because the public are the persons affected by the Legislators keeping away from the Legislative Assembly, thereby remaining on the wrong side of the Constitution.

I should even think that there should be a law enabling the people of the territorial constituency to call back their member who runs away from his duty to the people, and that, in violation of the Constitutional oath taken by him. When the Irish tenants joined together and declared that they had nothing to do with Captain Charles Boycott of Country Mayo in order to coerce him to lower rents in hard times, they would never have contemplated that future legislators in India would run away from their duties in the name of Captain Charles Boycott. Erskine May and Charles Boycott are verily strangers.

Negotiable Instruments Act, Chapter XVII Defeats the Purpose

(By Advocate S.A. Karim, Thiruvananthapuram)

The Negotiable Instruments Act, 1881, is century old one. By Amendment Act, 66 of 1988, Chapter 17 has been introduced in the main Act. This Chapter is only ten years old. It contains Ss.138 to 142. The amendment intends to discourage the unscrupulous dealings in cheque and to get back the cheque amount to the payee or the holder in due course. Before the amendment, the Act was under civil jurisdiction. After the amendment, it came to criminal jurisdiction. If one does not follow the section of this Chapter, remedy lies in the civil side. This chapter underwent various interpretations by various High Courts and the Supreme Court. Thus, this Chapter became the life blood of commerce and the Act itself. Still the real purpose is not served.

The drawer, drawee and the payee or holder in due course are the parties of a cheque. Normally, the victim is the payee or the holder in due course. This chapter intends to get back the cheque amount to the payee or the holder in due course. It never happens. S.138 reads-

"Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it, exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both".

Under this section, once an accused is found guilty, he shall be convicted and sentenced to undergo imprisonment for a term or impose fine. The payee or the holder in due course does not get the cheque amount. The case is instituted on a complaint by the payee or the holder in due course under S.142 of the same chapter. The Section further speaks the formalities to be followed. If he knows, he will not get the cheque amount, he will not file complaint and instead fall back to the civil side. The victim comes to the criminal court for speedy remedy and to get the amount and save money and time. The enlightened Parliament has never intended to make the treasury richer with private money. It is the undesired effect of this chapter. As this chapter comes under criminal jurisdiction, the Criminal Procedure Code applies. It is true S.357 of the Code provides compensation. It is only discretionary. In order to serve the intention of the Parliament, it requires a provision to get the cheque amount and expense to the payee or the holder in due course.

Rajendra Prasad (1997 (2) KLT 458) - A Bad Stock of Descent

(By K.V. Sohan, Advocate, Ernakulam)

The Division Bench decision Rajendra Prasad v. South Indian Bank (1997 (2) KLT 458) held following the decision in Sheo Narain Sah v. Mt. Deolochan Kuer (AIR 1948 Pat 208) that the right of redemption until confirmation of the sale is not a right under S.60 of the Transfer of Property Act but only a right under O.34 R.5 of the Central CPC. It further held that the under the amended Kerala O.34 only a composite decree is contemplated and once a sale takes place pursuant to the said decree the right to seek redemption ceases. The attention of the readers are also drawn to the Article written by Mr. M. R. Parameswaran in 1997 (2) KLT (Journal) 46. Mr. Parameswaran pleaded for amendment of the Kerala Order 34 to avoid unnecessary hardship to mortgagors. (I feel there are stronger arguments to show that O.34 of Kerala is beyond the rule making power of the High Court, whether it is under S.122 of CPC or under S.104 of the T.P. Act and so bad. For the time being I am not examining that proposition). With great respect the approach made in 1997 (2) KLT 458 as well as in the Article written by Mr. Parameswaran is not in the right direction.

2. I submit that the Division Bench decision is PER INCURIAM of binding precedent as well as SUB SILENTIO of relevant provisions of the Kerala Civil Procedure Code. To substantiate the finding that on passing of final decree the right of mortgagor comes to an end, the Division Bench followed AIR 1948 Pat. 208. This decision was directly over-ruled in Mhadagonda Ramgonda Patil & Ors. v. Shripal Balwant Rainade and Ors. (AIR 1988 SC 1200) the said fact was not noticed by the Division Bench. So, the entire finding based on AIR 1948 Pat 208 is PER INCURIAM.

3. The Division Bench held that there is only a composite decree under the Kerala Amendment to O.34 CPC and "the right to deposit and avert the sale is conferred on mortgagor - Judgment debtor under the Kerala Code only prior to the sale itself and not subsequent to the sale". It is submitted that this finding is unsupported by any provision of law. It is also submitted that the Division Bench committed grave error in holding that the right of redemption until confirmation of the sale is not a right under S. 60 of the Transfer of Property Act and is only a right conferred by Order 34 R.5 of the Central CPC.

4. It cannot be disputed that the right of a mortgagor to seek redemption in India is a statutory right conferred under S.60 of the Transfer of Property Act and the said right can be extinguished only in the manner provided under S.60 of the Transfer of Property Act. S.60 says that the sale right can be extinguished by act of parties or by decree of a Court. The Privy Council in Raghunath Singh & Ors. v. Mt. Hansraj Kunwar & Ors. (AIR 1934 P.C.205) held that the decree extinguishing the right of redemption of a mortgage should be strictly according to the form and the decree must specifically state that the right of the redemption shall be extinguished (Privy Council case was a suit for redemption in which the earlier final decree deviating from the form which debars redemption decreed that, in case of default in making payment the plaintiffs suit will stand dismissed. In such circumstances Privy Council held that the second suit for redemption is maintainable as the right of redemption has not been extinguished by the earlier decree as provided under S.60 of the T.P. Act).

5. A close study of O.34 of Central CPC and the Kerala Amendment will reveal that a decree passed in a suit for redemption and foreclosure are different from a decree for realisation of the mortgage amount by sale of the mortgage property. Under the Kerala Amendment a decree for foreclosure is passed under O.34 R.2 and a decree for redemption is passed under O.34 R.4, whereas a decree for sale is passed under O.34 R.3. It is true that the amended Kerala CPC does not contemplate passing of a preliminary decree and final decree in any of the suits under Rr.2, 3 and 4 of O.34. One will notice that in a foreclosure suit, O.34 R.2(ii) says that if payment is not made on or before the day fixed "the defendant and persons claiming through him shall be debarred from all rights to redeem the property". In the decree for redemption, under O.34 R.4 (iii) also the plaintiff is debarred from all rights to redeem the property. It is to be noticed that in a decree for sale under O.34 R.3 there is no debarring of the right of redemption for nonpayment of the decree debt within time and the decree under O.34 R.3 is without debarring the defendant mortgagor from his right to redeem i.e.; in a decree under O.34 R.2 the defendant/mortgagor is debarred by virtue of R.2(ii) from redeeming the property on expiry of the time fixed or failure to pay within the extended time. So also in a decree for redemption the plaintiff mortgagor is debarred by virtue of O.34 R.4 (ii) from redeeming on the failure of the payment within the stipulated time or extended time under O.34 R.5 of Kerala Amendment. This provision which debars redemption is specifically absent in O.34 R.3 and the decree form thereto in Appendix D No.6. The Division Bench is SUB SILENTIO regarding this distinction.

6. So, even if a composite decree under Kerala O.34 R.3 is passed there is no debarring the mortgagor of his right to redeem and the decree passed under O.34 R.3 cannot be said to be a decree which extinguishes the right of redemption. Thus logically and legally (he right of redemption is available to a mortgagor or any other person entitled to redeem in a decree passed under O.34 R.3 until the sale becomes absolute by an order of confirmation of the sale as the sale itself does not extinguish the residuary right of the mortgagor in the ownership of the property (Ref. O.21 R.89, 90 & 92). So, the right of redemption under a decree as per O.34 R.3 can be extinguished only on an order of confirmation of the sale whether under the Central CPC or under the amended Kerala CPC. O.34 R.5 of the Central Act is only a recognition of the substantive right in the procedural law. It is submitted that the Division Bench ruling in Rajendraprasad v. South Indian Bank is a bad stock of descent.

Gender in Equality in Partition

(By Jacob P. Alex. VIII Semester Student, School of Indian Legal Thought, M.G. University, Kottayam)

Introduction

"All are equals but some are more equal than others", wrote Orwell decades back in Animal Farm. We are about to cross the 20th century and seeking the gate pass to enter into the 21st century. Political parties make occasional vibrations for codification of personal laws but, some community is against it and a major section favours it. Those who argue for codification of personal laws are silent about the gender discrimination created by S.23 of the Hindu Succession Act, 1956. Mrs. Mary Roy was successful in getting her right to partition of intestate property - notwithstanding the then existing Travancore Christian Succession Act and Cochin Christian Succession Act. The Apex Court of the land held that provisions of the Indian Succession Act will apply to Christians in Kerala. The personal law is to be untouched by the provisions of the Part III of the Constitution [1]. The Supreme Court has not given any reasons for this proposition and the declaration of the Supreme Court reasoned or unreasoned is always binding.

If Christian Law relating to succession in middle Travancore and erstwhile Cochin can be changed I wish to bring to the notice of the legal luminaries in the Bench and Bar, the Law Commission and the Parliament, the glaring discrimination created by S.23 of the Hindu Succession Act, 1956 which runs as follows:

Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family then notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein, but the female heir shall be entitled to a right of residence therein.

Provided that where such female heir is daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.

Object and Reasons - Whether a justification?

It is seemingly with the object of preventing fragmentation or disintegration of family dwelling house that the aforesaid provision is enacted. It is unnecessary to quote the plethora of decisions for brevity. In the under noted cases[2] it was very clearly mentioned that the sole object of S.23 is to prevent fragmentation of the dwelling house. Authoritative treatises on Hindu Law also repeat the very same object. But it should be noted that this enactment was passed in the year 1956 and the Parliament had in mind the provisions of Partition Act 1893. Yesteryear's India is not today's India. The Hindus particularly in Kerala and that too the so called "Janmies" (landlords) had extensive lands of immovable properties which were snatched away through the Land Reforms Act, a revolutionary change made by the State of Kerala. If this provision is retained the female heirs will find it very difficult to get their share unless the male heirs choose to divide their respective shares. In order to attract S.23 the following requirements should be satisfied (1) A male or female dies intestate. (2) The heirs include female heirs specified in Class I of the Schedule. (3) The deceased leaves a dwelling house wholly occupied by members of his or her family.

Dissection of Section 23 of the Hindu Succession Act, 1956 and Anatomy of Gender Discrimination

1. If the object is to prevent fragmentation of the dwelling house the male members should also be prevented from claiming partition. Whether the fragmentation could happen only in the hands of female heirs? If S.23 is intended to prevent partition of the dwelling house then logically it should have been prevented both at the hands of male and female heirs. Unfortunately the wordings of S.23 being only designed against female heirs it ipso facto results in discrimination.

The expression "until the male heirs choose to divide their respective shares" will result in a quite unhappy situation and the female heirs will be constrained to wait until all male heirs divide the property before enforcing her right to partition. The Smritikars[3] were of the view that the dwelling house should not be partitioned [4]. Though this was the clear and sole intention, gradually the unfortunate expression "'at the instance of female heirs" has been included which will be a violation of the equality principle. Even after the death of the father a female daughter cannot get her share of property on account of the stumbling block created by S.23. So the Section is manifestly discriminatory and still worse than the provisions of the erstwhile Travancore and Cochin Christian Succession Acts.

2. Recently the Hon'ble Supreme Court in Narasimha Murihy v. Susheela Bai[5] gives a "thought provoking" logic behind S.23 and held that S.23 restricts the right of a female heir to claim partition of the family dwelling house so long as the male heirs do not choose to effect partition of the same, it was also held that due to marriage the daughter would leave the parental house and get transplanted into the matrimonial home. It is inferred that daughters will loose their affection towards their parental home after marriage.

Are daughters less anxious and less reverential to preserve the dwelling house to keep the parental memory alive than the male heirs? The object of preventing fragmentation can be thwarted or defeated by a male member and they can fragment the dwelling house which the female heir cannot. And I fear the paragraph Nos.14 to 18 of the above said decision in Murthy's case[6] would be criticized as an example of male chauvinism.

The object of preventing disintegration of a dwelling house at the instance of a female heir who may become an outsider by marriage cannot be fully achieved. The son of predeceased daughter who is a class 1 heir and who is an outsider of the family can claim partition under law. This section prevents only the daughter(s) or female heir(s) of the predeceased from claiming partition. If that is so how can the object of preventing fragmentation be achieved?

The statutory interdict which prevent females from claiming partition until the male heirs choose to divide their respective shares is unfortunate. And in this situation, the law is leaning heavily in favour of males. If there is only one male heir, he can successfully obstruct the right of female heir(s) for ever by resorting to S.23 of the Act. In such situations the right to partition of a female will be permanently postponed and will be ultimately frustrated.

Hence, it is submitted that the object of S.23 cannot be fully achieved and the same will only result in denying the rights of female heirs. This section will only help to throttle the dream of equality.

3. The proviso of S.23 is a still more obnoxious provision which only offers stark contradictions and disparities. There are eight class 1 female heirs i.e., (i) daughter (ii) widow (iii) mother (iv) daughter of a predeceased son (v) daughter of a predeceased daughter (vi) widow of a predeceased son (vii) daughter of a predeceased son of a predeceased son (viii) widow of a predeceased son of a predeceased son.

But I am afraid whether the drafts-man was in deep slumber as there are many disparities. The object itself cannot be achieved in all situations and daughters are blatantly discriminated. So, I am forced to submit that the above retrograde provision which is outmoded must be given a decent burial.

1. Lastly I request the Parliamentarians to repeal S.23 of the Hindu Succession Act, 1956.

2. I request the Feminist Organisations and allied associations supporting them to take up this matter before the Hon'ble Supreme Court.

3. I appeal to the Law Commission to recommend repeal of the obsolete provision.

_________________________________________________________________

Footnotes:

1. Krishna Singh v. Mathura Ahir (AIR 1980 SC 707)

2. a Janabai Amma v. Palani Mudaliar(T.A.S.1981 Mad.62)

  b V. Mallikarujuna Rao v. C. Sivasankara Prasad (AIR 1981 AP 84)

  c Mookkammal v. Chithravadiammal (AIR 1980 Mad.243)

  d Arun Kumar Senyal v. JnanendraNath SenyaI (AIR 1975 Cal.232)

  f Sanjaya Kumar Das v. Smt. Maya Dutta (AIR 982 Cal. 222)

  g Smt. Usha Majumdar v. Smt. Smrithi Basu (AlR l988 Cal.115)

3. Manu IX 219,MitaksharaI,IV, 16-17)

4. Mitakshara I,iv,21.

5. Narasimha Murthy v. Susheela Bai (AIR 1986 SC1826)

6. Ibid